I started the “Jumping the Shark” section of Confessions of a Truthaholic because some things are so nonsensical they need to be called out. They may be well-intentioned, but they simply miss the mark. The Leading Against White Supremacy Act of 2023 jumps the shark, but probably not for the reasons you suspect!
On January 9, 2023, Congresswoman Sheila Jackson Lee introduced H.R. 61 (House Resolution 61 - the 61st bill proposed in the 118th Congress) “to prevent and prosecute white supremacy inspired hate crime and conspiracy to commit white supremacy inspired hate crime and to amend title 18, United States Code, to expand the scope of hate crimes.”
Per the proposed bill, “a person engages in a white supremacy inspired hate crime when white supremacy ideology has motivated the planning, development, preparation, or perpetration of actions that constituted a crime or were undertaken in furtherance of activity that, if effectuated, would have constituted a crime.”
Note: Neither white supremacy, nor white supremacy ideology, is defined or otherwise described in any portion of the House Resolution.
Really?
By way of background, Title 18 of the United States Code contains the criminal code of the federal government. It deals with federal crimes (not state crimes) and criminal procedure. Here’s the what the code looked like when I was in law school!
The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (enacted in 2009) is codified in Section 249 of Title 18 [18 U.S.C. Sec. 249] and addresses hate crimes specifically.
Per the statute, hate crimes are defined as …
“[O]ffenses involving actual or perceived race, color, religion, or national origin … [where someone] willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability …”
Ms. Jackson Lee’s proposed bill would amend this section of the law to add the following wording after “national origin” in the first line … “or because of a white supremacy based motivation against any person.”
Hence, hate crimes would occur when the “offenses involving actual or perceived race, color, religion, or national origin, or because of a white supremacy based motivation against any person [where someone] willfully causes bodily injury … because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability …”
Note: Neither white supremacy, nor white supremacy ideology, is defined or otherwise described in any portion of the House Resolution.
The proposed statute, or law, also outlines a conspiracy to engage in white supremacy inspired hate as evidenced by social media posts and other publications.
It is unclear to me whether this is intended to be a stand alone crime or an enhanced penalty for other crimes. In my opinion, FWIW, the text is really clunky and horribly written. I am not a criminal defense attorney, nor am I a federal prosecutor, but I am an attorney and understand how to read statutes.
If I’m confused, then the public, for whom these laws are passed to protect, will the public be utterly confused as well?
That said, let’s take look at this as a practical matter.
Prosecuting hate crimes is extremely difficult because it requires proof of motive beyond a reasonable doubt, something that is not generally required for other crimes, including premediated murder. The “hate” per se does not constitute the crime, i.e. murder, the “hate” is the alleged “motivation” for the actual crime, i.e. murder. The idea is that the motive should stiffen the penalty for a defendant convicted of a bias-motivated crime.
But, here’s the rub.
If a defendant is convicted of murder and is sentenced to life in prison or the death penalty, does the motivation actually matter?
How many lives does the defendant have to serve in prison?
How many lives does the defendant have to be executed?
I reached out to a friend - who is also a federal prosecutor - to help me understand federal prosecutions and the use of hate crime statutes.
My friend was kind enough to provide super-useful information about prosecuting federal crimes generally as well as federal hate crimes for purposes of background, not commentary on this particular.
Here is the gist of what my friend shared:
There are a number of federal statutes that are associated with the term “hate crime.” While there are certainly some gaps in federal law in which certain kinds of conduct might not be captured, the legislative scheme is still fairly comprehensive and of course state criminal laws can often serve to fill the gaps.
As prosecutors, we are driven by the need to prove each and every “element” of each offense beyond a reasonable doubt. An element is the existence of a factor which makes up the body of criminal law and – to use the Latin phrases – involves actus reus and mens rea, as well as the jurisdictional hooks that allow for prosecution.
(For example, in federal criminal law, we often have to prove some element of interstate effect or nexus to have jurisdiction to charge in the first place).
Simply put, we must prove that the person charged acted with the requisite intent. Our jobs then are tied to proving each and every element of each crime beyond a reasonable doubt. It can’t be, “well, it kinda FEELS like he’s guilty so we’ll ask the jury to convict.” It also can’t be, “well, we proved 3 out of the 4 elements beyond a reasonable doubt but not the 4th one.” Each and every element must be proven BARD. This is an enormously high burden (and rightfully so). Try to find 12 strangers who will agree on ANYTHING BARD!
Prosecutors are eager to hold criminals accountable and protect the public. We want good tools to do that. Well-drafted and clear statutes with readily-defined terms are essential. If it is vague or undefined, we lose (and rightfully so).
One difficulty with proving hate crimes is that they add an element of proof that virtually no other type of criminal statute contains. That element is motive. Intent and motive are not the same thing.
Intent does not require the extra step of proving “why.” Sometimes the motive is relevant to and evidence of the requisite intent but it need not be proven itself in the vast majority of other statutes. The risk of course then becomes that we have proven BARD the actus reus and mens rea (ordinarily sufficient for convictions on other criminal statutes) but NOT the element of motive. The jury in that instance is duty bound to acquit, even if it FEELS like the defendant is guilty.
So the risk is obvious – making the prosecutors prove extra elements (especially ones that involve extra “stuff” existing in someone’s brain) – makes our jobs become more difficult. Not only do we have to prove that someone possesses the requisite improper bias or animus, we also have to prove that the bias motivated the conduct.
Because this is a difficult task, the definitions must be clear. If, for example, you want to criminalize conduct based on the motivation of advancing “white supremacy,” that term must be clearly and objectively defined. It cannot be based on subjective whims and interpretations of the term but rather on concrete objective standards and definitions clearly stated in the statute.
Personally, I think there is much conduct covered by “hate crimes” legislation that can also be charged a different way, and I would rather do it that way, because I’m not trying to advance a narrative, make a cultural statement or prove anything other than the defendant committed a federal crime and should be held accountable. Those are the parameters of my job.
I have prosecuted authentic white supremacists on other statutes unrelated to hate crimes, and they have served or are serving lengthy sentences.
If there is any way to achieve the end goal of reasonable criminal accountability without having to prove additional difficult-to-prove elements, I’m gonna do it that way. I don’t want to have to prove something extra to get to the same place.
So the risk of hate crimes and the added element is that we fail to hold someone accountable that we otherwise could have with a different statute. Of course, were I to charge a hate crime, I would charge the additional statutes I thought fit the conduct and intent of the defendant as well if they applied. That somewhat ameliorates the risk.
At the end of the day, the elements of the offense and the evidence to support those elements should dictate prosecutorial charging strategy; nothing else.
To learn more, check out the Department of Justice’s hate crimes and enforcement website.
Thank you friend for helping me understand how this works in a real world scenario.
—
Given the above, let’s look at a couple of real world examples …
George Floyd
The charges filed against Derek Chauvin in the George Floyd case did not allege a hate crime since, per the Department of Justice’s investigations, there was no evidence to support a finding that Chauvin’s actions were motivated by race. Absent evidence sufficient to prove racial motivation beyond a reasonable doubt (the burden of proof in ALL criminal cases), it would be impossible to secure a conviction.
As my friend suggested above, one might ask … “why risk an otherwise sound criminal case that carries extreme punishment?”
This does NOT diminish the tragedy of the situations, but it does reveal that the evidence simply did not provide a path to conclude racial bias as the motivation for police action.
If you can’t prove it, don’t charge it.
James Byrd, Jr.
You may recall the horrifying 1998 murder of James Byrd, Jr. in East Texas, the same year Matthew Shepard was beaten and left for dead. Three white men were convicted of Mr. Byrd’s murder - they chained him to the back of a pickup truck, dragged him for miles, and dumped his remains in front of a church.
Two of the defendants, who were avowed white supremacists with ties to the KKK, have been executed. The third is serving a life sentence in prison.
Byrd’s killers were brought to justice by applying traditional state murder statutes that did not include a mandate to prove the bias motivation in order to obtain a conviction. While investigators dug deep into the murderers’ motives, the prosecutor’s did not bear the burden of proving motive in order to secure a conviction.
The public was outraged, not by the convictions, but by the failure to charge the murders as a hate crime.
Had the Texas prosecutors not been able to prove racial animus as the motivation, not intent, BARD, there is a strong possibility the murderers would not have been convicted, absent other intervening circumstances (see below for more on this).
If the public was happier about the charges, but the defendants were acquitted because the evidence to support motive (which is subjective) BARD just wasn’t there, would justice have been served?
I think not.
To put a finer point on it, let’s look at the elements of premeditated first-degree murder in the United States Code - 18 USC Sec. 1111.
The prosecutor has to prove beyond-a-reasonable-doubt (BARD) that:
The victim was killed.
The defendant caused the death of the victim with malice aforethought (intention to kill or harm).
The defendant did so with premeditated intent.
The killing took place within the special maritime or territorial jurisdiction of the United States.
Now, let’s add a fifth element - motivation:
The defendant caused the death of the victim because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.
If the prosecutor can prove the first four elements BARD, but not the fifth, the jury will have to acquit the defendant, that is return a NOT GUILTY verdict, or convict of a different or lesser crime, provided the indictment included such charges.
Again, can you imagine the public outrage?
My question then is … Why exactly are we looking to make things harder for prosecutors?
Appeasing the public is not the prosecutor’s job. Enforcing the law against bad people who break it is.
Back to Ms. Jackson Lee …
Irrespective of the above, Representative Jackson Lee has proposed amending the Hate Crimes portion of the criminal code, specifically 18 USC Sec. 249, to add crimes "inspired by white supremacy” to the list of hate crimes.
The bill (proposed law) explains that a white supremacy inspired hate crime happens when someone publishes (on a social media platform or elsewhere) material advancing white supremacy, white supremacist ideology, antagonism based on ‘replacement theory,"‘ or hate speech that vilifies or is otherwise directed against any non-White person or group …”
Note: Neither white supremacy, white supremacist ideology, antagonism based on “replacement theory”” are defined in the bill.
Perhaps we are to draw our own assumptions about what it means from the following chart originally developed by the Safehouse Progressive Alliance for Nonviolence in 2005?
For the reasons above, this bill is nonsensical and is written nonsensically.
Even if passed and signed into law, which it won’t be given that there are still a few legislators who believe in the First Amendment, for starters, it would be struck down immediately on Constitutional grounds.
So why go there?
This kind of political posturing is colossal waste of taxpayer money and simply fuels the flames of a socially constructed race war that only a few are actually fighting.
As a friend of mine recently said, it seems that, given how uneducated Americans are about basic civics, including our fundamental rights, we’re marching toward a place where we can no longer self-govern because we are too stupid collectively to do so.
Perhaps we should pay attention to Shania Twain when she said … “Don’t Be Stupid”!
Rep. Jackson Lee: You have jumped the shark.
Thank you for reading and supporting my content. Please drop your thoughts in the comments. This is a very important issue that should be taken seriously.
xo,
Kelley
January 18, 2023
Well researched and written! It would be helpful for journalists who cover Congress and anchors who interview people in Congress to now this. They rarely do their homework and don't ask the obvious questions that should be asked during live and recorded interviews. Is it because they don't know? don't want to know? don't care? The answers are available for anyone to read, as your article points out so well. Thank you again for an excellent article!
Rep Jackson-Lee has an extensive record of 'swing and a miss'. I think this one will add to that record. 1% of her proposed legislation becomes law and even fewer of those are even remotely substantive or serious. Taxpayers (and her constituents) are certainly not getting their bang for the buck and her 'representation' is below average certainly bumping up against poor.